CHAPTER 8 DOMESTIC RELATIONS

Key to the preservation of American Indian cultures and traditions is the ability and authority of Indian nations to adopt laws consistent with Indian culture for the adjudication of domestic relations, which largely include marriage and divorce, child custody and welfare, adoptions, inheritance and devise, and other related subject areas. It is in this realm, more so than virtually all other areas of law, that Indian nations have complete discretion to adopt their own laws and be ruled by them. In Kobogum v. Jackson Iron Co., 43 N.W. 602, 605 (Mich. 1889), a nineteenth-century Michigan Supreme Court case immortalized by Robert Traver’s novel Laughing Whitefish (1965), the court upheld the inheritance rights of the child of a technically polygamous marriage between two Chippewa Indians in the Upper Peninsula of Michigan. The court wrote that ‘‘we had no more right to control [tribal] domestic usages than those of Turkey or India.’’ Taking judicial notice ‘‘that among these Indians polygamous mar- riages have always been recognized as valid,’’ the court identified a conun- drum: ‘‘We must either hold that there can be no valid Indian marriage, or we must hold that all marriages are valid which by Indian usages are so regarded. There is no middle ground which can be taken, so long as our own laws are not binding on the tribes.’’ Times have changed. Most, if not all, Indian tribes no longer recognize polygamous marriages and Indian people tend to utilize the divorce laws as much as non-Indian people. The Upper Peninsula is no longer on the fringes of the American frontier. Moreover, the laws of states often do apply to Indians and sometimes even Indian tribes. It remains settled black-letter law, however, that Indian tribes retain plenary and exclusive inherent authority over ‘‘domestic relations among tribal members.’’ FELIX S. COHEN,COHEN’S HANDBOOK OF FEDERAL INDIAN LAW, §4.01[2] [c], at 215 (Nell Jessup Newton ed., 2005) (citing Fisher v. Dist. Ct., 424 U.S. 382 (1976); United States v. Quiver, 241 U.S. 602 (1916)). The fact that tribes control their own domestic relations well into the modern era of federal-state-tribal relations is a function of the sui generis character of federal Indian law.

437 438 Chapter 8. Domestic Relations

A. MARRIAGE

INREVALIDATION OF MARRIAGE OF FRANCISCO

Navajo Nation Supreme Court, No. A-CV-15-88, 6 Navajo Rep. 134, 16 Indian L. Rep. 6113, 1989.NANN.0000013 (August 2, 1989)

Before TSO, Chief Justice, BLUEHOUSE and AUSTIN, Associate Justices. The opinion of the court was delivered by: BLUEHOUSE, Associate Justice. . . .

I. This is a marriage validation case in which the Appellant, Loretta Francisco, appealed the July 20, 1988 decision of the Window Rock District Court denying validation of her common-law marriage. Oliver Chaca and Loretta Francisco cohabitated as man and wife between approximately October 1978 and August 7, 1987 in Window Rock, Arizona. Chaca worked in Peach Springs, Arizona. Francisco, an enrolled member of the Navajo Tribe, and Chaca, a Hopi, combined their earnings, acquired personal property in both of their names, and accumulated debts in both of their names. The public knew of the parties’ relationship. Chaca often introduced himself and Francisco as husband and wife, and visited Francisco at her place of employment. No children were born to the couple. Sometime in June 1987, they talked about marrying each other, but they did not obtain a marriage license, marry according to Arizona state law, or participate in a traditional Navajo wedding ceremony. On August 7, 1987, Chaca died as the result of an automobile accident. . . . Francisco cannot collect any portion of the life insurance proceeds unless her common-law marriage is validated. The Window Rock District Court applied 9 N.T.C. §2 to the parties’ rela- tionship and ruled that the statute means that Navajos can validly contract marriage with non-Navajos only in compliance with applicable state or foreign law. . . . The district court refused to validate the parties’ marriage because they failed to contract it according to Arizona law.

II. The subject of marriage within the Navajo Nation is perplexing because of the outdated and confusing laws found in Title 9 of the Navajo Tribal Code. Consequently, the Navajo courts are faced with the difficult task of reconciling the Navajo Tribal Council’s intent with the parties’ expectations in recovering veterans’ and other benefits. See, e.g., In re Marriage of Daw, 1 Nav. R. 1 (1969). The lack of a coherent Navajo domestic relations code has caused Navajo courts to mingle common-law marriage with traditional Navajo marriage. . . . However, these two kinds of marriages differ substantially. A common-law marriage is ‘‘not solemnized in the ordinary way (i.e. non-ceremonial) but created by an agreement to marry followed by cohabitation. . . . Such marriage requires a positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, cohabitation sufficient to warrant a fulfill- ment of necessary relationship of man and wife, and an assumption of marital A. Marriage 439 duties and obligations. . . . Such marriages are invalid in many states.’’ . . . This type of marriage is a product of Anglo practice that is unknown and unrecog- nized in traditional Navajo society. By contrast, contracting a traditional Navajo marriage has been described as follows: 1) The parties to the proposed marriage shall have met and agreed to marry. 2) The parents of the man shall ask the parents of the women for her hand in marriage. 3) The bride and bridegroom then eat cornmeal mush out of the sacred basket. 4) Those assembled in the hogan then give advice for a happy marriage to the bride and groom. 5) Gifts may or may not be exchanged. Navajo Tribal Council Resolution CJ-2-40 (June 3, 1940). ‘‘Traditional Navajo society places great importance upon the institution of marriage. A traditional Navajo marriage, when consummated according to a prescribed elaborate ritual, is believed to be blessed by the ‘Holy People.’ This blessing ensures that the marriage will be stable, in harmony, and perpetual.’’ Navajo Nation v. Murphy, 6 Nav. R. 10, 13 (1988). Under tradi- tional Navajo thought, unmarried couples who live together act immorally because they are said to steal each other. Thus, in traditional Navajo society the Navajo people did not approve of or recognize common-law marriages. . . . After partaking in the traditional Navajo wedding ceremony, some couples do not obtain marriage licenses because, traditionally, the performance of the ceremony completely validates the union. Unfortunately, Navajos without marriage licenses often face problems, such as difficulty in acquiring Social Security and military benefits for their dependents. See, e.g., Daw, 1 Nav. R. at 1. . . . A common-law marriage is invalid for reasons other than a defect in the ceremony because Title 9 states that Navajos can marry only in three ways: state, church, and tribal custom. 9 N.T.C. §§4(a)-4(b), 61. A common-law mar- riage is not recognized by Title 9...... Judicial recognition of common-law marriage is not necessary to pro- tect those who participate in Navajo tribal custom marriages now that the cut- off date has been abolished...... The Navajo Tribal Council legislated this requirement: ‘‘In all cases the Courts of the Navajo Nation shall apply any laws of the United States that may be applicable and any laws or customs of the Navajo Nation not prohibited by applicable federal laws.’’ 7 N.T.C. §204(a) (1985). For this reason, and because domestic relations is at the core of Navajo sovereignty, this Court is obligated to apply Navajo custom. ‘‘Navajo customs and traditions have the force of law.’’ In re Estate of Belone, 5 Nav. R. 161, 165 (1987). Navajo custom does not recognize common-law marriages, regardless of whether one or both spouses are Navajos. See R. Locke, The Book of the Navajo 20-23 (1976). Navajo tradition and custom do not recognize common-law 440 Chapter 8. Domestic Relations

marriage; therefore, this Court overrules all prior rulings that Navajo courts can validate unlicensed marriages in which no Navajo traditional ceremony occurred. For the same reason, this Court will not construe any section of Title 9 of the Navajo Tribal Code as authorizing judicial validation of common-law marriages. To enhance Navajo sovereignty, preserve Navajo marriage tradi- tion, and protect those who adhere to it, Navajo courts will validate unlicensed Navajo traditional marriages between Navajos. For these reasons, the district court’s refusal to validate the alleged common-law marriage between Chaca and Francisco is affirmed.

III. As a sovereign Indian nation that is constantly developing, the Navajo Nation must be forever cautious about state or foreign law infringing on Navajo Nation sovereignty. The Navajo Nation must control and develop its own legal system because ‘‘the concept of justice has its source in the fabric of each individual society. The concept of justice, what it means for any group of people, cannot be separated from the total beliefs, ideas, and customs of that group of people.’’ T. Tso, Chief Justice’s Annual Report, Judicial Branch of the Navajo Nation Annual Rep. 1 (1988). Navajo life centers around the home, traditionally a hogan. Id. The Navajo Nation, within the four sacred moun- tains, is the Tribe’s hogan and source of strength and wisdom. Id. Navajo ‘‘oral history contains no stories of leaders or assistance coming from outside.’’ Id. Instead, Navajo tribal history reveals ‘‘that Navajos know best how to provide for Navajos.’’ Id. ‘‘Implicit in the Treaty of 1868 is the understanding that the internal affairs of the Navajo people are within the exclusive jurisdiction of the Navajo Nation government.’’ Billie v. Abbott, 6 Nav. R. 66, 68-69 (1988) (citing Williams v. Lee, 358 U.S. 217, 221-22 (1959)). ‘‘The sovereignty retained by an Indian tribe includes ‘the power of regulating [its] internal and social relations.’ ’’ Id. at 69 (quoting United States v. Kagama, 118 U.S. 375, 381-382 (1886)). ‘‘Navajo domestic relations is the core of the tribe’s ‘internal and social relations.’ ’’ Id. (quoting Fisher v. District Court, 424 U.S. 382 (1976)). Thus, ‘‘Navajo code law and Navajo common law regulate the domestic relations . . . of Navajos living in Navajo Indian Country.’’ Id. at 67. By saying that ‘‘[m]arriages between Navajos and non-Navajos may be validly contracted only by the parties’ complying with applicable state or for- eign law,’’ 9 N.T.C. §2 allows outside law to govern domestic relations within Navajo jurisdiction. Such needless relinquishment of sovereignty hurts the Navajo Nation. The Navajo people have always governed their marriage prac- tices, whether the marriage is mixed or not, and must continue to do so to preserve sovereignty. Regulation of marriages, an integral part of the Navajo Nation’s right to govern its territory and protect its citizens, should be free from the reach of state and foreign law. The Navajo Nation must regulate all domestic relations within its jurisdiction if sovereignty has any meaning. Even the United States government found that local laws best govern domestic rela- tions in most instances. . . . Enacted in 1957, 9 N.T.C. §2 has outlived its usefulness. A. Marriage 441

This Court recommends that the Navajo Tribal Council amend Title 9 of the Navajo Tribal Code so that it reflects Navajo regulation and control of domestic relations within Navajo territorial jurisdiction. Affirmed.

NOTES 1. In Naize v. Naize, 24 Indian L. Rep. 6152 (Navajo Nation 1997), the court reaffirmed prior holdings authorizing the Navajo judiciary to award spousal maintenance payments in divorce cases even without an authorizing statute from the tribal legislature: At the outset, we establish that the Navajo Nation courts, serving as courts of equity, have the general authority to award alimony, particularly in cases where a divorced spouse is ‘‘not able to provide for her [or his] own mainte- nance and that of her [or his] remaining minor children without some sort of financial aid from’’ the former spouse. . . . This power exists independent of any Navajo Nation statute on the subject and is justified by the Navajo People’s traditional teachings admonishing not to ‘‘throw one’s family away.’’ Public policy also supports the courts’ exercise of this power. The general lack of economic and employment opportunities on the Navajo Nation, the Nation’s lack of a well educated and skilled labor force, and the Nation’s high divorce rate, which leaves children dependent on one spouse or relatives, all underlie the many requests to the courts for spousal maintenance. . . . The Navajo People’s segmentary lineage system (clanship system) is the foundation of Navajo Nation domestic relations law. The system itself is law. Traditional Navajo society is matrilineal and matrilocal, which obligates a man upon marriage to move to his wife’s residence. The property the couple bring to the marriage mingle and through their joint labors create a stable and permanent home for themselves and their children. The wife’s immedi- ate and extended family benefit directly and indirectly, in numerous ways, from the marriage. If the marriage does not survive, customary law directs the man to leave with his personal possessions (including his horse and riding gear, clothes, and religious items) and the rest of the marital property stays with the wife and children at their residence for their support and maintenance. Whatever gains the marital property generate goes to support the wife and children and to a lesser extent the wife’s close relatives. This longstanding customary law is akin to modern spousal maintenance. Therefore, we conclude that Navajo common law gives the Navajo Nation courts’ authority to award spousal maintenance in appropriate cases even in the absence of statutory law on the subject. Our laws require our courts to apply Navajo common law equally to both spouses when addressing spousal maintenance issues. Naize, 24 Indian L. Rep. at 6152. The court then affirmed portions of the spousal maintenance awarded by the trial court: The Appellant argues that the Chinle Family Court abused its discretion when it awarded to the Appellee spousal maintenance. . . . We disagree. The Appellee’s evidence in support of her request is not controverted . . . and strongly shows a need for an award of spousal maintenance. 442 Chapter 8. Domestic Relations

The Appellee is a 58 year old elderly Navajo lady who was married to the Appellant for 22 years. She is uneducated and unemployable. Poor health and illiteracy makes her a poor prospect for vocational training or other training to acquire meaningful employment skills. Her poor health prevents her from weaving rugs or raising livestock to support herself and her son. She earns no wages and chances she will acquire capital assets are nonexistent. She is in constant need of medical attention. She had two operations, cannot move freely without pain, has tuberculosis related health problems, has a foot disorder which requires special needs, and needs funds for traditional cere- monies. She contributed to the marriage, as wife, mother, and homemaker, while the Appellant worked outside the home. The parties’ only child lives with her and needs her support. She needs transportation to get medical care. Under these facts, we cannot find a better applicant for an award of spousal maintenance. . . . Just enough evidence to tip the scale in favor of an award of spousal maintenance is all we require. The trial court has discretion to decide on sufficient evidence and we find no abuse of discretion here. We affirm the family court’s award of spousal maintenance to the Appellee. The Appellant does not dispute the amount of the spousal maintenance award and we do not address it. The time period that the Appellant is oblig- ated to make monetary payments is also not an issue. The only other matter is the family court’s order that the Appellant must supply the Appellee with wood and coal for an indefinite time period. We reverse this part of the spousal maintenance award because it violates that Navajo common law rule which requires finality in Navajo divorces. Harmony in the community and in the lives of the divorced spouses should be restored quickly following a divorce. Apache v. Republic National Life Insurance Co., 3 Nav. R. 250, 254 (Window Rock D. Ct. 1982). We rely on the teachings of Apache: There was a principle of finality in Navajo customary divorce, and the principle of restoring harmony in the community by quickly and finally breaking ties so the community can soon return to normal is one which is common-sense. To permit a former spouse to keep such ties that she or he may be said to be lurking behind the hogan waiting to take a portion of the corn harvest is unthinkable, since each spouse returns to his or her own family after the divorce. Each former spouse should return home after making the break and disturb others no more. Id. at 254.

Also, it is not fair to require the Appellant to supply wood and coal for life, while he is obligated to pay spousal maintenance for only three years. Naize, 24 Indian L. Rep. at 6153. 2. Other courts also have refused to recognize ‘‘common-law marriages’’ under tribal law. E.g., In re Estate of Abeyta, 2 SWITCA 4 (Pueblo of San Juan 1991). 3. In Husband v. Wife, 2003.NAMP.0000002 (Mashantucket Pequot Court of Appeals 2003), the court was confronted with whether to enforce a Connecticut state court divorce decree between two tribal members. The court chose to apply the doctrine of comity as its analysis: In stark contrast to the Full Faith and Credit Clause as revealed in case law, VI M.P.T.L. ch. 8, §2(b) requires the tribal court, prior to enforcement of a foreign judgment, to determine whether ‘‘such judgment . . . contravene[s] the public policy of the Mashantucket Pequot Tribe.’’ It therefore would be A. Marriage 443

wholly at odds with the language of ch. 8, §2(b) to conclude that it intends to require application of ‘‘full faith and credit’’ — as that term is understood under settled constitutional law — to foreign marriage dissolution judgments. Instead, we believe, Mashantucket Law requires that foreign judgments be evaluated, and where appropriate, recognized through the far more flexible construct of ‘‘comity,’’ where consideration of public policy considerations is permissible. Id. at ¶¶31-32. The court then engaged in the analysis of whether the state court divorce decree violated tribal public policy: On the issue of public policy, we agree with the Tribe that, as a general matter, enforcement of lawful dissolution of marriage judgment from the State of Connecticut does not contravene Mashantucket public policy. (Mashantucket Pequot Tribal Nation’s Br. of Amicus Curiae at 5-6) (‘‘Tribal Court recognition of state court orders that provide for the custody, care, education, visitation and support of [Wife’s] child does not, in general, contravene the public policy of the Tribe.’’). Our independent review of Mashantucket law confirms this understanding. Initially, we recognize, as noted supra, that the use of the term ‘‘full faith and credit’’ in VI M.P.T.L. ch. 1, §2(c) is strong evidence that such recognition is consistent with Mashantucket policy. See also V M.P.T.L. ch. 1, §3(d). . . . Furthermore, the ‘‘Purpose’’ section of the Family Relations Law, which is perhaps the clearest indication of Mashantucket policy on this issue, recognizes that: [F]amilies thrive when they receive appropriate emotional and financial support, and that the lives of children and families improve by strength- ening parental responsibility for family and child support. The Tribe encourages the development of Tribal law and policies and procedures that protect and preserve the continuity of family and promote a uniform, efficient and equitable recognition and implementation of these respon- sibilities. VI M.P.T.L. ch. 1, §1(a). Plainly, this provision accords substantial weight to judgments which adjudicate dissolution claims and properly and fairly place ‘‘financial support’’ on parents of children. This view of Mashantucket policy is con- firmed by the Child Welfare Law as well, codified in Title V of the M.P.T.L. Chapter 1, §1 of that Title states in pertinent part: The Mashantucket Pequot Tribe finds that there is no resource more vital to its continued existence and integrity than its children. . . . The Tribe hereby declares that it is the policy of this Nation to protect the health and welfare of children and families within the Mashantucket Pequot commu- nity, to promote the security of community, and to preserve the unity of the family by enhancing the parental capacity for good child care and development and providing a continuum of services for children and families with an emphasis, whenever possible, on prevention, early inter- vention, and community-based solutions.

Here, tribal children are among the main beneficiaries of the judgment under consideration, which requires the payment of child support. Their welfare — obviously a paramount consideration of the Tribe — militates 444 Chapter 8. Domestic Relations

strongly for adoption of the judgment. Moreover, in this case, there is no indication — and Husband does not contend — that the division of parental financial responsibility is inequitable. Under these circumstances, we have no trouble concluding that Mashantucket policy, in general, supports recog- nition of a lawful Connecticut dissolution judgment, particularly since child support is involved. Id. at ¶¶39-43. 4. The author of Anatomy of a Murder, Robert Traver (the pen name of former Michigan Supreme Court Justice John Voelker), also wrote a novel called Laughing Whitefish, based on a series of nineteenth-century Michigan Supreme Court cases culminating in Kobogum v. Jackson Iron Co., 43 N.W. 602 (Mich. 1889). See also Compo v. Jackson Iron Co., 12 N.W. 901 (Mich. 1882); Compo v. Jackson Iron Co., 16 N.W. 295 (Mich. 1883). The Kobogum decision established in Michigan the general rule that state courts must defer to tribal law in cases involving the internal, domestic relations of American Indians residing within their own territory. The underlying dispute involved an almost fantastic and contrived story. An Upper Peninsula Ojibwe man — Marji Gesick, who likely would now be a member of the Keewenaw Bay Indian Community — led a group of mining company explorers in 1845 to an area that would later be known as the Jackson Mine, the site of one of the richest veins of iron ore in the nation. Upon the ‘‘discovery,’’ the company people in 1846 offered Mr. Gesick ‘‘twelve undivided thirty-one one hundredths parts of the interest’’ of the mining company that would be set up on that land. Of course, after the mining company became hugely profitable it never paid Mr. Gesick his share. After Mr. Gesick walked on in 1861 or 1862, his daughter Charlotte Kobogum brought suit to recover the amount owed in the 1880s. The critical questions involved the defenses presented by the company. First, the company argued that Charlotte had waited too long to bring the suit, decades after the mining company had become wealthy and valuable. Second, the company argued that Mr. Gesick was a polygamist, with mar- riages to as many as three wives without divorcing any of them, and that Charlotte, as the issue of the second marriage, could not inure to the benefit of Mr. Gesick’s bargain under the settled public policy of the State of Mich- igan. In 1889, the Michigan Supreme Court finally vindicated the interests of Charlotte Kobogum and her family: The only question remaining is whether Marji Gesick’s interests passed to his descendants recognized by the Indian laws and usages. If they did, there is no doubt of the rights of these complainants. . . . The United States supreme court and the state courts have recognized as law that no state laws have any force over Indians in their tribal relations. . . . There was not, during any of the period involved in these inheritances, any law or treaty of the United States on the subject of Indian marriages, or in any way interfering with Indian usages on the subject. The testimony now in this case shows what, as matter of history, we are probably bound to know judicially, that among these Indians polygamous marriages have always been recognized as valid, and have never been confounded with such promiscuous or informal temporary intercourse as is not reckoned as marriage. While most civilized B. Probate 445

nations in our day very wisely discard polygamy, and it is not probably lawful anywhere among English speaking nations, yet it is a recognized and valid institution among many nations, and in no way universally unlawful. We must either hold that there can be no valid Indian marriage, or we must hold that all marriages are valid which by Indian usage are so regarded. There is no middle ground which can be taken, so long as our own laws are not binding on the tribes. They did not occupy their territory by our grace and permission, but by a right beyond our control. They were placed by the constitution of the United States beyond our jurisdiction, and we had no more right to control their domestic usages than those of Turkey or India. The treaties made between the United States and this very tribe, which are quite numerous, all recognize heritable relations among them, and in many instances, familiar to all old residents of the country, provided for the Indian families of persons who had other families; recognizing the Indian nation as entitled to say who should share in tribal benefits. As white men cannot withdraw themselves from state law, we should have no great difficulty in determining their personal status; but Indians who were members of their tribes were not obliged or authorized to look to state laws in governing their own affairs. Kobogum, 43 N.W. at 507-08 (emphasis added; other emphases omitted).

B. PROBATE

INRE:ESTATE OF SAMPSON

Mashantucket Pequot Probate Court, No. PB 2000-100, 2002.NAMP.0000003 (January 18, 2002)

The opinion of the court was delivered by: EDWARD B. O’CONNELL, Judge By application dated July 6, 2000, Margery M. Pinson (the ‘‘petitioner’’) represents that Constance L. Sampson (sometimes called the ‘‘decedent’’ or ‘‘testatrix’’) was a member of the Mashantucket Pequot Tribe who died in Mashantucket on July 1, 2000, leaving a last will and testament dated October 28, 1996. The petitioner requests that the will be admitted to probate and that letters testamentary be granted to her as the executrix of the will. Leslie Champlain and Yvette Champlain (the ‘‘respondents’’ or ‘‘contestants’’), are grand-nieces and blood relatives of the decedent. They oppose the admission of the will on the ground that the decedent lacked testamentary capacity to make a will. The will bequeaths specific legacies of $5,000.00 each to Evelyn Pinson, a niece of the decedent, and Virginia Diaz McConneghey, who had resided with the decedent for a number of years as a foster child. The residuary estate is devised and bequeathed to Margery M. Pinson, the decedent’s sister, who sur- vived the decedent. The decedent was one of thirteen brothers and sisters, three of whom had predeceased her. The respondents are granddaughters of Mason Champlain, a deceased brother of the decedent. With the exception of Margery M. Pinson and Evelyn Pinson, none of the decedent’s brothers and sisters are named as beneficiaries of the will, and none of their offspring are named as beneficiaries. 446 Chapter 8. Domestic Relations

Asserting that the testatrix was ‘‘a greatly disturbed decedent who suffered from a constellation of psychotic problems, physical and mental limitations,’’ to the degree that a conservator of her estate and person had to be appointed by the Groton Probate Court, the respondents contend that the testatrix lacked the testamentary capacity to make a will. The petitioner responds that the mere existence of a conservatorship does not compel the conclusion that the will is invalid, and that the testatrix was possessed of sufficient mental capacity to comprehend the effect of what she was doing when she signed the will. Section 1 of Chapter 5 of the Mashantucket Pequot Probate Code provides: Any person eighteen years of age or older or an emancipated minor, and of sound mind, may dispose of his estate by will. The corresponding Connecticut statute, Section 45a-250 of the Connect- icut General Statutes similarly provides: Any person eighteen years of age of older, and of sound mind, may dispose of his estate by will. Because the provisions of the Mashantucket Pequot Probate Code are similar, and in many cases identical, to the Connecticut General Statutes relating to probate matters, decisions of the Connecticut courts are a ‘‘useful source of guidance’’ when discussing testamentary capacity. See Schock v. Mashantucket Pequot Gaming Enterprise, 3 Mash. 258 (1999) (federal court interpretations of Federal Rules of Civil Procedure are helpful in interpret- ing an identical provision in the Mashantucket Rules of Civil Procedure), citing Mamiye v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 141,142 (1997). . . . Here, the provisions of the Mashantucket Pequot Probate Code and the Connecticut General Statutes as to who may make a will are sub- stantially similar, and Connecticut cases on testamentary capacity are partic- ularly useful. The parties do not dispute the principles of law and the tests that the court must apply in determining whether the testatrix possessed sufficient testamen- tary capacity, summarized as follows: The burden of proving testamentary capacity is on the party claiming under the will. . . . Accordingly, ‘‘[t]he burden of proof in the instant case to establish the capacity of the testatrix to make a will rested upon the [proponent].’’ . . . The proponent of the will must prove the fact of testamentary capacity by a preponderance of the evidence. . . . The presumption of capacity permits the proponent to rest upon proof of some evidence of testamentary capacity, shifting to the contestants the burden of going forward with the evidence upon the issue, . . . but the ultimate burden of proving testamentary capacity remains with the proponent. . . . There is a ‘‘well established test for testamentary capacity, i.e. that the testator have mind and memory sound enough to know and understand the business upon which he was engaged at the time of execution [of the will].’’ . . . Stated another way, ‘‘[t]he test which we apply is the ability of the testator at the time of the execution of the will to understand the nature and elements of the particular transaction of making a will in which he is engaged.’’ . . . B. Probate 447

A testatrix ‘‘may be competent to make a will though she has not mental capacity sufficient for the management or transaction of business generally[;] . . . some mental impairment could occur and still leave the testatrix with a sound mind within the definition of testamentary capacity.’’ . . . The fact that a conser- vator has been appointed for the testator is among the relevant evidence that may be considered, but is not dispositive. In Reid v. Lord, 102 Conn. 365 (1925), ‘‘the testator had been adjudged insane and a conservator set over him, still, as the contestants of the will concede, this is not conclusive [on the question of testamentary capacity].’’ Id. at 368. ‘‘A person may harbor insane delusions and yet have testamentary capacity. A delusion can affect testamentary capacity only when it enters into and controls to some degree the making of a will.’’ . . . The parties do not disagree on the applicability of the above principles. They are in vigorous disagreement, however, on the issue of whether the dece- dent was possessed of sufficient mind and memory to know and understand what she was doing at the time she executed her will. Mrs. Sampson died on July 1, 2000. Three years and nine months earlier, on October 28, 1996, she signed her last will and testament while a resident of Mashantucket. Attorney John Duggan, licensed to practice law and experi- enced in the preparation of wills and administration of estates, prepared the will and supervised its execution. He first met Ms. Sampson in 1994, when he assisted her in preparing her tax return. On this occasion, and on several other occasions in subsequent years when he helped her prepare her tax returns, he would get from her the necessary information, prepare the return, and bring it back to her for her signature. He did not recall any unusual behavior during these meetings, and found her to be a ‘‘delightful’’ person. In the fall of 1994, Ms. Sampson was residing in Groton, Connecticut. Although she received considerable income as a member of the Mashantucket Pequot Tribe, it was disappearing and not accumulating. Ms. Sampson was a generous person; some recipients of her generosity may have been taking advantage of this trait. Margery Pinson, the decedent’s sister, sought the assis- tance of Attorney Duggan in establishing a conservatorship in the Groton Probate Court. With Attorney Duggan’s assistance and participation, Ms. Pinson was appointed as the decedent’s conservator. Ms. Sampson moved to the Mashantucket Pequot reservation in 1995. Physical ailments common to people of her age began to develop; she was scheduled to undergo colon surgery on October 29, 1996. Four days earlier, on October 25, 1996, Attorney Duggan met with Ms. Sampson at Mashantucket to discuss changes to her existing will. He testi- fied that they met for about half an hour, and discussed her then-existing will and what changes were to be made and why. He was aware that Ms. Sampson was under a conservatorship. Mr. Duggan recalled that Ms. Sampson was understandably concerned about the upcoming surgery, but did not act or speak inappropriately. Although she did not know the balance of her accounts ‘‘to the last dime,’’ she was aware of the nature and general amount of her assets. She knew who her relatives were, and had cogent reasons for making changes in her will. Attorney Duggan also discussed with her the possibility of a living will. She did not want one, however, as she was a practicing Jehovah’s 448 Chapter 8. Domestic Relations

Witness, and considered that a living will would be inconsistent with her religious tenets. After preparing the revised will, Attorney Duggan again met with Ms. Sampson on October 28, 1996 at the house of Margery Pinson, on the Mashantucket reservation. As before, he discussed with her the changes from the previous will. He recalls that she expressed no doubt or hesitation, and did not appear to be confused or uncertain about the nature of her assets, the relationships with her family members, or how she wanted her estate to be distributed. Attorney Duggan was satisfied that Ms. Sampson pos- sessed the requisite testamentary capacity; he watched her sign the will in the presence of two witnesses, including himself, and administered the oath on the self-proving affidavit signed by the other witness. Ms. Sampson survived her surgery, and died about three and one-half years after she executed the will, at the age of sixty-nine. Attorney Duggan met with her on several occasions after she signed the will, usually regarding her tax returns, and observed nothing that would cause him to change his opinion that she had testamentary capacity at the time she signed the will. As in many will contests, the respondents did not have first-hand, personal knowledge of the events surrounding the preparation and execution of the will, and are not in a position to directly contradict Attorney Duggan’s recol- lections and impressions. They did, however, submit a considerable array of circumstantial evidence, which is appropriate: ‘‘The testator’s mental condition is not capable of demonstration by direct evidence. It can only be shown by proof of circumstances from which the inference of mental condition may be drawn. The circumstances pointing to mental condition usually consist of miscellaneous acts o[r] expressions which taken singly are of little value but which in the aggregate portray a pattern of behavior from which the trier (sometimes with the assistance of opinions by experts) may reach a conclusion’’. FOLSOM,CONNECTICUT ESTATES,PRACTICE,PROBATE LITIGATION, (1992) §1.5, p. 11. Evidence of the testator’s acts and condition during periods of time both prior and subsequent to the date of execution of the will may be admitted ‘‘solely for such light as it may afford as to his capacity at that point of time [of execution] and diminishes in weight as time lengthens in each direc- tion from that point.’’ . . . The parties submitted evidence of circumstances relating to the decedent’s physical and mental condition in the form of testimony by Mr. Duggan; testimony and medical records of physicians; the record and findings of the Groton Probate Court conservatorship proceedings; testimony of Attorney Eric Janney, appointed as Ms. Sampson’s attorney by the Groton Probate Court, testimony of some of Ms. Sampson’s family members, including the petitioner and the respondents; and testimony of Eleanor Sudol, a home health aide employed by Interim Healthcare. Eleanor Sudol was employed by Interim Healthcare as a home health aide and daytime companion for Ms. Sampson from 1995 until her death in July 2000. She was with Ms. Sampson several times a week during the month of October, 1996, when the will at issue was executed. She often drove Ms. Sampson to visit her sister, Margery Pinson, who Ms. Sudol described as Ms. Sampson’s ‘‘favorite.’’ Ms. Sudol testified that Ms. Sampson decided where B. Probate 449 she wanted to go, what she wanted to eat, formed opinions of her own and could hold a coherent conversation. Ms. Sampson was aware that Ms. Pinson looked after her finances, telling Ms. Sudol that ‘‘I’m rich. Margery takes care of me.’’ Ms. Sudol was aware that the decedent was on medications, but could recall no instances when the decedent was delusional or irrational. Dr. Amarillys Rodriguez, employed by the Mashantucket Pequot Tribe to provide and supervise health care for tribal members, is a board certified family physician. She first met the decedent in 1992, through the decedent’s sister Margery Pinson, who worked at the Mashantucket health center. At that time Ms. Sampson was living in Rhode Island. Dr. Rodriguez saw the decedent for specific medical conditions, and eventually began meeting with her about once a month for checkups. In the beginning Ms. Sampson was shy and reserved, but over the course of time began to trust and accept Dr. Rodriguez. Ms. Sampson had a number of physical problems, including diabetes, arthritis and coronary diseases. She was opinionated about her case, asking about procedures and consequences. Dr. Rodriguez was also aware that the decedent had a history of psychiatric illnesses, including chronic depression and panic disorders. She knew about this through her review of the decedent’s medical records and her own obser- vations. Dr. Rodriguez prescribed an array of medications for the decedent’s physical and mental conditions. In October of 1993, Dr. Rodriguez admitted Ms. Sampson to Backus Hospital for heart problems. During the hospitalization, Dr. Rodriguez referred Ms. Sampson to Dr. Max Okasha, a psychiatrist, inasmuch as she was exhibit- ing signs of depression. He concluded that the decedent was suffering from an episode of major depression and panic disorder, and suggested a change in medication. About a year after the Backus heart admission, in several reports to the Groton Probate Court in support of the conservatorship application, Dr. Rodriguez stated that the decedent was giving her money away, had short term memory problems and was ‘‘forgetful, redundant and sometimes doesn’t understand simple instructions,’’ particularly when she did not take her medications. Dr. Rodriguez felt that the decedent needed help in keeping track of and taking her large array of medications, and that it would assist Ms. Sampson if her sister Margery Pinson was in a position to actively monitor her finances and her care. In August of 1995, Dr. Okasha again saw the decedent and decided to change her medication. That new medication provoked drastic changes; a few days later the decedent turned up at the emergency room in a panic and a week later was admitted to the Backus psychiatric ward in a confused, depressed, delusional and panicky state. After her medications were changed again, the decedent felt less depressed, her anxiety decreased, her panic attacks ceased, her delusions abated, and she was discharged from the hospital. Two months later, in October of 1995, Dr. Okasha noticed that the decedent was restless, pacing and rocking. He again changed her medication, and this was resolved. After the October 1995 episode Ms. Sampson’s psychiatric treatment was taken over by Dr. Alnoor Ramji, also a Norwich psychiatrist. Dr. Rodriguez felt 450 Chapter 8. Domestic Relations

that Dr. Okasha was certainly competent, but that Dr. Ramji might be more understanding of issues such as Ms. Sampson’s lateness for appointments. She felt that Dr. Ramji might connect better with Ms. Sampson. The contestants attribute darker motives to this change in psychiatrists, but the court accepts Dr. Rodriguez’ explanation. Dr. Ramji treated Ms. Sampson from late 1995 until her death on July 1, 2000. In 1996, he saw her in his office on ten occasions, including October 18, 1996, ten days before the execution of her will. As did Dr. Okasha, Dr. Ramji found that the decedent suffered from organic brain disorder and schizophre- nia, and that she needed to be on a number of psychiatric medications to control episodes of depression and panic disorder. He also considered that she suffered from short term memory problems, and that a home health aide service was of assistance in assuring compliance with her schedule of medications. On October 29, 1996, the day after she executed her will, Ms. Sampson was hospitalized for colon surgery. Dr. Rodriguez testified that while hospitalized during the surgery and its aftermath, Ms. Sampson had to stop taking her medications and, as a result, ‘‘decompensated.’’ When her medications were restored, however, Ms. Sampson resumed her former mental state. Thereafter, Ms. Sampson physically declined in health over the years until her death on July 1, 2000. During this time, Dr. Rodriguez dealt with Margery Pinson regarding Ms. Sampson’s health, and occasionally talked with Virginia Diaz McConneghy. She did not speak with any other family members. Ms. Margery Pinson is the sister of the decedent and the major beneficiary of her estate and the named executrix. She testified that until the last years of her life, the decedent was poor and had few material possessions. She worked hard, often as a cleaning person in the homes of the well to do. While in Rhode Island, the decedent raised a foster child, Virginia Diaz McConneghey, under the auspices of the Rhode Island child welfare authorities. Ms. Pinson testified that she and her sister were a part of a large family, consisting of thirteen siblings, and that she and her sister were especially close: ‘‘Since we were chil- dren, Constance and I took care of each other.’’ When living in Rhode Island, the decedent would stay with Ms. Pinson when Ms. Pinson’s husband worked the night shift. Ms. Pinson testified that the decedent, who was childless, was fearful that she would be put in a nursing home in her old age. Ms. Pinson promised her that this would not happen. Eventually, the decedent was the only one of her generation of siblings remaining in Rhode Island. She wanted to come and live on the Mashantucket reservation, but there were no openings at the time. The next best housing alternative at that time was the apartment in Groton, and the decedent lived there until she moved to the reservation. Ms. Pinson recalled that the decedent knew she had money from the Tribe, but was good-hearted and prone to give it away, prompting Ms. Pinson to request the Groton conservatorship. The decedent knew she was getting money from the Tribe, and occasionally asked Ms. Pinson if she could see her checkbook and bankbook. Ms. Pinson recalled that the decedent talked to her and her sister Mertice on the phone, and occasionally received visitors, but most of her other brothers and B. Probate 451 sisters and relatives did not pay much attention to her. Ms. Pinson would visit the decedent, or the decedent would visit her, every day when they were on the reservation. Before that, she would visit the decedent once a week when she was in Groton. They took trips together to vacation and tourist spots, such as Amish country and Bar Harbor. Ms. Pinson, who was present when the decedent signed her will, considered that Ms. Sampson was of sound mind at that time. Renee Everett, a niece of the decedent, testified that she knew the decedent all her life, and that Ms. Sampson lived with her parents when Ms. Everett was younger. She also visited Ms. Sampson when she lived in Groton. She knew her aunt had psychological problems, often acting in a ‘‘childish’’ or temperamen- tal manner, but did not consider that her aunt was ‘‘nuts.’’ Diedre Champlain, another niece of the decedent and a sister of Ms. Everett, also testified. She recalled visiting with her aunt in Rhode Island during her youth, and visiting with her once while the decedent lived in Groton. On one occasion she observed the decedent at the Mashantucket pharmacy acting inappropriately, on her hands and knees and rocking profusely. She reported this behavior to another niece at the pharmacy, Evelyn Pinson. This incident took place in 1993 or 1994, about two years before the execution of the will. Like Ms. Everett, Diedre Champlain saw the decedent out at tribal functions, but did not converse with her on those occasions other than say ‘‘hello,’’ as an aide would do most of the talking. On cross-examination she agreed that Margery Pinson and Evelyn Pinson had a closer relationship with the decedent than did other members of the family. Attorney Eric Janney was Ms. Sampson’s court-appointed attorney during the Groton Probate Court conservatorship proceeding. He recalled that he was concerned with the decedent’s ability to handle her financial affairs, and rec- ommended that a conservator be appointed. Although she would get confused from time to time, she was clear about her illnesses in her one conversation with him. Attorney Janney considered that Ms. Sampson comprehended the effect of the conservatorship proceedings, and understood that her finances would be handled by her sister Margery. Three expert witnesses, Dr. Rodriguez, Dr. Okasha and Dr. Ramji testified regarding the decedent’s testamentary capacity. Dr. Rodriguez, whose practice included geriatrics, considered that the decedent’s short-term memory ‘‘wasn’t perfect.’’ The decedent did, however, remember the names of her brothers and sisters, and could recollect events in her childhood and adulthood. She had psychological problems, as evidenced by her records from Rhode Island mental health professionals and Dr. Rodriguez’ own observations. She was afflicted with organic brain syndrome, schizophrenia and depression, but Dr. Rodriguez felt that the effects of these illnesses could be alleviated by medications, to the extent that Ms. Sampson was aware of her assets, her family and what she wanted to do with her money. Dr. Rodriguez acknowledged that Ms. Sampson took a large number of prescriptions, up to fourteen in a day, but felt that the drugs did not result in an unsound mind. Rather, it was when the decedent did not take her medications, or when the medications were changed, that resulted in disruptions and inappropriate behavior. She felt that, inasmuch 452 Chapter 8. Domestic Relations

as Ms. Sampson had sufficient funds to afford it, home health aides were useful in assuring that she kept to her schedule of medications. Dr. Rodriguez saw the decedent on October 29, 1996, one day after she executed the will, when she met with the decedent at Lawrence & Memorial Hospital on the day of her colon surgery. Dr. Rodriguez testified that Ms. Sampson was alert, cooperative and understood what was happening. She was nervous, as are most people who face major surgery, but was not sad or crying or depressed. She understood and was aware of her assets in a general sense; she knew who were the members of her family; she remembered who did things for her over the years. In the view of Dr. Rodriguez, Ms. Sampson was of sound mind, capable of understanding what she was doing when she signed a document, such as her will on October 28, 1996, and the consent for surgery on the next day. Dr. Rodriguez based this conclusion on her medical training, her treatment of Ms. Sampson since 1993 and her conversation with Ms. Sampson on October 29, 1996, the day after she signed the will. Dr. Ramji began treating the decedent in November of 1995, when he took over her psychiatric care from Dr. Okasha. He reported that despite having a ‘‘long and significant psychiatric history,’’ she was ‘‘quite capable of distin- guishing between right and wrong and to make appropriate decisions regard- ing her medical care’’ as evidenced by her discussing with him the pros and cons of moving from Groton to the reservation to be near Margery Pinson, ‘‘who she was very close to and in whom she had a lot of confidence and trust.’’ Dr. Ramji was aware that the decedent was receiving assistance from home health care aides, but in his opinion that did not mean she was of unsound mind; it was more a matter of her being able to afford and take advantage of this type of service. Dr. Ramji found the decedent to be ‘‘quite alert, verbal’’ over the course of his treatment. He considered that ‘‘her depression and psychosis were very well controlled by her medications,’’ and that in 1996 her condition was ‘‘stable’’ except when her medications were stopped because of the colon surgery. After that surgery she ‘‘was stabilized quickly and returned to her former self.’’ Dr. Ramji saw the decedent in October 1996, the month that the will was executed. Based on his training, experience and treatment of the decedent, he was of the opinion that at the time she signed her will she was of sound mind, alert, oriented as to time and place and able to exercise good judgment. In his opinion, her medications worked well for her, and her depression was not so severe that it interfered with her soundness of mind. Dr. Okasha first treated the decedent in October of 1993 upon a referral from Dr. Rodriguez. He also saw the decedent on several occasions during the next two years when she was in crisis, resulting in hospitalizations until her mental condition could be stabilized. He described the symptoms and behav- ior of the decedent during these crises, such as short term memory loss and disorientation as to time and place. He concluded that the decedent suffered from organic brain syndrome and schizophrenia. Although there were periods of time that the decedent’s condition was acute, Dr. Okasha did not consider that she needed to be institutionalized. In his report and testimony, Dr. Okasha described generally the various and typical aspects and effects of these illnesses. He also observed that with medication the decedent could B. Probate 453 function on a day-to-day basis with assistance, but if she stopped taking med- ication her mental condition would deteriorate, and she would become con- fused and destabilized. Dr. Okasha stopped treating the decedent in November of 1995. He did not opine regarding her soundness of mind on October 28, 1996, the date of the execution of her will.

Conclusion Constance Sampson had a hard and difficult life. For most of it, she was poor; she did not have many material possessions. She had to work for what she had, often as a housecleaner for those who were better off than her. In her earlier years she was exposed to some of the harsh and unpleasant aspects of life in our society, but also participated in beneficial and joyful activities, to the point where she raised a foster child for the better part of a decade. She was not without the skills necessary to navigate through the vicissitudes of daily life. Mentally, Ms. Sampson had her ups and downs, beginning when she was younger and lived in Rhode Island. All the physicians who testified agreed that she suffered from chronic brain syndrome, schizophrenia and depression. These physicians also agreed, however, that the effects of these illnesses can be ameliorated and controlled by medications. The task of this court is to determine whether these illnesses, when combined with the physical pro- blems which began to beset her during her later years, created such a deficient state of mind and memory that she did not know and understand what she was doing when she signed her will. The will itself provides no evidence of a mind that has lost its moorings. The primary beneficiary is Margery Pinson, the decedent’s sister and lifelong friend. She frequently visited Ms. Pinson when they were both living in Rhode Island. Ms. Pinson was the conservator of her estate, an appointment endorsed by Attorney Janney. Ms. Pinson spoke or visited with the decedent every day when the decedent moved to Mashantucket. She would take the decedent on trips that were both special (e.g. vacations) and mundane (e.g. visits to doctors’ offices). The close relationship between them was apparent to Elenor Sudol, who described Ms. Pinson as the decedent’s ‘‘favorite.’’ None of the decedent’s other surviving siblings (all of whom were omitted from her will) objected to the admission of the will. In these circumstances Ms. Pinson can be fairly regarded as the natural object of the decedent’s bounty. The dispositive terms of Ms. Sampson’s will, which leaves the bulk of her estate to her close sister, are not evidence of a deranged mind. Evidence of the testatrix’ acts and condition at periods of time near the date of execution of the will is particularly useful when compared to evidence in points of time further removed from the date of execution, which ‘‘diminishes in weight as time lengthens [from the date of execution].’’ . . . Attorney Duggan discussed the terms of the will with the decedent several days before the execution of the will, when she gave him cogent reasons for her testamentary scheme. Her mind was capable of grasping the distinction between a testamentary will and a living will; she objected to the latter because of her religious beliefs. This is not evidence of a wandering mind; rather, it is evidence of a mind that can understand the concepts behind a living will. At 454 Chapter 8. Domestic Relations

the will execution itself, Mr. Duggan, who was aware of and had participated in the Groton conservatorship proceedings and as a result was alert to the issue of testamentary capacity, discerned no confusion or uncertainty on the part of the decedent, and was satisfied that she possessed the requisite testamentary capacity. Dr. Rodriguez, who had cared for the decedent since 1992 and was aware of both the physical and mental aspects of her condition, saw the decedent the day after she signed the will. Dr. Rodriguez, who was aware [of] the necessity of discerning the decedent’s mental condition because of the requirement that she sign a consent to surgery on that day, found that she was alert and com- prehending of what was going on. Dr. Rodriguez, who had opportunities to observe the decedent on occasions both good and bad, saw that the decedent was not depressed or sad on that day. She was confident that the decedent was aware of the general nature of her assets, and that she knew who were the members of the family. Dr. Rodriguez knew that the decedent’s mental state could deteriorate when she did not take her medications, but she saw no evidence of mental impairment on the day after the decedent signed her will. Dr. R